1

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

CURTIS WRIGHT, 

 CASE NO. 2:12-CV-512 

 Petitioner, JUDGE GRAHAM 

 MAGISTRATE JUDGE ABEL 

 v. 

WARDEN, NOBLE CORRECTIONAL 

INSTITUTION, 

 Respondent. 

REPORT AND RECOMMENDATION 

 Petitioner Curtis Wright, a state prisoner, brings this action for a writ of habeas corpus 

under 28 U.S.C. § 2254. This matter is before the Magistrate Judge on the petition, 

Respondent’s Return of Writ, and the exhibits of the parties. 

This case involves Curtis Wrights conviction after a jury trial in the Harrison County 

Court of Common Pleas for burglary. The Seventh District Court of Appeals affirmed his 

conviction, and the Ohio Supreme Court dismissed Petitioner’s subsequent appeal. For the 

reasons that follow, the Magistrate Judge concludes that all of the claims Petitioner now raises in 

this federal habeas corpus petition are waived and the Magistrate Judge therefore 

RECOMMENDS that this action be DISMISSED. 

Facts and Procedural History:

 The Ohio Seventh District Court of Appeals summarized the facts and procedural history 

of this case as follows: 

Appellant was indicted for burglarizing a neighbor's house while 

they were on vacation. At a jury trial, nineteen-year-old Shawn 

Ellenbaugh testified that appellant was his mother's live-in 

boyfriend. He stated that on the night of the burglary, he and 

Case: 2:12-cv-00512-JLG-MRA Doc #: 8 Filed: 10/30/13 Page: 1 of 15 PAGEID #: <pageID>
2

appellant walked to the neighbor's house because appellant wished 

to break in. (Tr. 216). He testified that appellant threatened to kill 

him if he told anyone. (Tr. 217). When they arrived, appellant tried 

to pry open the window but then used a rock to break the window. 

Shawn stated that he climbed through the window and unlocked 

the door for appellant. (Tr. 217–218). He testified that they went 

through the house stealing jewelry and money. (Tr. 221). 

According to Shawn, they then walked to his uncle's house where 

appellant borrowed a car. He said they drove to Steubenville where 

appellant bought crack with the stolen money and was told that the 

jewelry was fake. (Tr. 225). They went back to the burglarized 

house and stole a big screen television. When it would not fit in the 

trunk, they put it in the front seat, and drove back to Steubenville 

to sell it. Shawn testified that no one wanted an old model 

television, so they left it at a car wash. (Tr. 228). He stated that 

they arrived home just before 7:00 a.m. (Tr. 229). 

A cousin testified that she arrived at the house where Shawn and 

appellant lived at 6:30 a.m. after a night-shift at work. She stated 

that she saw the car pull in the drive with appellant in the driver's 

seat and Shawn in the passenger seat. (Tr. 254–256). 

The owner of the vehicle testified that appellant arrived at his 

house at midnight on January 17, 2010 and borrowed his car. (Tr. 

165). The next morning he went to the house where appellant lived 

to retrieve his car and noticed the trunk latch was broken and the 

dashboard was scratched. (Tr. 169–170). In the vehicle, he found a 

screwdriver, a broken necklace, and a gift card holder addressed to 

the person whose house had been burglarized. (Tr. 171, 173). His 

girlfriend confirmed that it was appellant who borrowed their 

vehicle. (Tr. 188). 

Appellant's girlfriend, who is Shawn's mother, testified that 

appellant arrived home at 11:00 p.m. (Tr. 337). She claimed that 

she went with appellant to her brother's house to borrow his car, 

they went to Wintersville, and they returned home at 1:00 a.m. at 

which point they went to bed. (Tr. 339). She testified that appellant 

never left the bed that night. (Tr. 341). 

Her fourteen-year-old son, Brandon Ellenbaugh, testified for the 

defense that his mother and appellant went to his uncle's to borrow 

a car and arrived home at midnight or 1:00 a.m. (Tr. 373). Brandon 

said that his brother Shawn then asked him if he wanted to take a 

ride in their uncle's car but he refused to accompany Shawn. He 

testified that he saw Shawn return with the vehicle in the morning. 

Case: 2:12-cv-00512-JLG-MRA Doc #: 8 Filed: 10/30/13 Page: 2 of 15 PAGEID #: <pageID>
3

According to Brandon, the next day, Shawn brought him to the 

house he had burglarized the night before, but Shawn noticed that 

someone had cleaned up the glass so they left. (Tr. 376). 

On September 30, 2010, the jury found appellant guilty of thirddegree felony burglary in violation of R.C. 2911.12(A)(3). On 

October 28, 2010, appellant filed a motion for a new trial based 

upon newly discovered evidence. Brandon Ellenbaugh had 

delivered a written statement to the police station on October 26, 

2010, claiming that it was he and Shawn who burglarized the 

house in the early morning hours of January 17, 2010. 

At a hearing, Brandon testified that they pushed their uncle's car 

out of their drive and drove to the neighbor's house. He described 

how they went through the house and what they stole. He said that 

Shawn went into an apartment in Cadiz for thirty minutes and 

reported that no one wanted to buy the television and the jewelry 

was fake. He stated that they left the television at a car wash in 

Cadiz. (Tr. 19). 

The detective who took Brandon's statement testified that Brandon 

told him that he missed appellant at their house and that he wanted 

to get him released. Brandon disclosed his belief that he would not 

be incarcerated because he was a juvenile. (Tr. 8–9). The detective 

believed that the child had been coached or that he fabricated the 

story to assist appellant. (Tr. 9). 

On December 28, 2010, the court denied the motion for a new trial. 

The court opined that Brandon's new story was not credible. The 

court noted that both of Brandon's stories lacked detail. The court 

pointed out that the jury did not place much weight on Brandon's 

original testimony when he testified for the defense and that this 

new story was also not credible. Appellant was then sentenced to 

five years in prison, and he filed a timely notice of appeal. 

State v. Wright, No. 11 HA 2, 2011 WL 5346084, at *1-2 (Ohio App. 7th Dist. Nov. 4, 2011). 

Petitioner filed the following assignments of error on appeal: 

1. A TRIAL COURT MUST GRANT A DEFENDANT'S 

MOTION FOR A NEW TRIAL WHEN A WITNESS 

RECANTS HIS TESTIMONY AND THAT WITNESS 

CONFESSES THAT HE COMMITTED THE CRIME. 

Case: 2:12-cv-00512-JLG-MRA Doc #: 8 Filed: 10/30/13 Page: 3 of 15 PAGEID #: <pageID>
4

2. MR. WRIGHT'S CONSTITUTIONAL RIGHTS TO 

CONFRONT THE WITNESSES AGAINST HIM WERE 

VIOLATED WHEN THE TRIAL COURT PROHIBITED 

HIM FROM CROSS–EXAMINING PENNY WILSON AND 

BRITTANI RILEY ON MATTERS THAT WOULD HAVE 

IMPACTED THEIR CREDIBILITY AND EXPOSED BIAS, 

PREJUDICE, AND ULTERIOR MOTIVES AND 

SUPPORTED HIS DEFENSE. 

3. THE TRIAL COURT'S CURATIVE INSTRUCTIONS 

WERE INSUFFICIENT TO CURE THE REPEATED, 

IMPROPER ALLEGATIONS THAT MR. WRIGHT 

ENGAGED IN OTHER BAD ACTS, INCLUDING, 

MAKING THREATS AGAINST CERTAIN WITNESSES 

AND ENGAGING IN OTHER CRIMINAL CONTACT. 

4. MR. WRIGHT'S CONVICTION IS AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE. 

See id. at *2-11. On November 4, 2011, the appellate court affirmed the trial court’s judgment. 

Id. On March 21, 2012, the Ohio Supreme Court dismissed Petitioner’s subsequent appeal. 

State v. Wright, 131 Ohio St.3d 1484 (2012). 

 On June 11, 2012, Petitioner filed the instant pro se petition for a writ of habeas corpus 

pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody of the Respondent in violation 

of the Constitution of the United States based upon the following grounds: 

1. A trial court must grant a defendant’s motion for a new trial 

when a witness recants his testimony and that witness 

confesses that he committed the crime. Crim.R. 33(A)(6). 

(Dec. 28, 2010 Judgment Entry; January 13, 2011 Judgment 

Entry Order to Transport.). 

Supporting Facts: The little brother of the guy, who actually 

committed the burglary, testified on stand at hearing for new 

Case: 2:12-cv-00512-JLG-MRA Doc #: 8 Filed: 10/30/13 Page: 4 of 15 PAGEID #: <pageID>
5

trial. Also wrote statement and drawed (sic) pictures of the 

inside of the house they burglarized. He confessed to doing 

the burglary with his older brother. 

2. Mr. Wright’s constitutional rights to confront the witnesses 

against him were violated when the trial court prohibited him 

from cross-examining Penny Wilson and Brittani Riley on 

matters that would have impacted their credibility and 

exposed bias, prejudice, and ulterior motives and supported 

his defense. Sixth and Fourteenth Amendment to the United 

States Constitution and Sections 10 and 16, Article I of the 

Ohio Constitution. (Jury Trial Tr. 207; Jan. 13, 2011 

Judgment Entry Order to Transport.). 

Supporting Facts: Two of the state’s witness went to my house 

and threatened one Case: 2:12-cv-00512-JLG-MRA Doc #: 6 

Filed: 09/07/12 Page: 6 of 23 PAGEID #: 148 of my witness. 

(sic) When asked to question the state’s witness, the state 

claimed their witness would plead the Fifth Amendment. 

3. The trial court’s curative instructions were insufficient to cure 

the repeated, improper allegations that Mr. Wright engaged in 

other bad acts, including making threats against certain 

witnesses and engaging in other criminal contact. Evid.R. 

404(A); Evid.R. 802; State v. Demarco, 31 Ohio St.3d 191, 509 

N.E.2d 1256. (Jan. 13, 2011 Judgment Entry Order to 

Transport.). 

Supporting Facts: The prosecutor kept letting his witness bring 

up things that had nothing to do with the case in front of the 

jury, about my past. 

4. Mr. Wright’s conviction is against the manifest weight of the 

evidence. Fifth and Fourteenth Amendments to the United 

States Constitution; and Section 16, Article I of the Ohio 

Constitution. (Jan. 13, 2011 Judgment Entry Order to 

Transport.). 

Supporting Facts: The detective Jones testified that Shawn was 

the only link that puts me, Curtis Wright in the Wallace house 

that Shawn and Brandon Ellenbaugh burglarized. It was 

Shawn’s word is why I’m locked up. (Doc. 2, pp. 5-9 and Doc. 

2-2, p.2). 

It is the position of the Respondent that all of Petitioner’s claims are procedurally defaulted. 

Case: 2:12-cv-00512-JLG-MRA Doc #: 8 Filed: 10/30/13 Page: 5 of 15 PAGEID #: <pageID>
6

Procedural Default: 

In recognition of the equal obligation of the state courts to protect the constitutional rights 

of criminal defendants, and in order to prevent needless friction between the state and federal 

courts, a state criminal defendant with federal constitutional claims is required fairly to present 

those claims to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If he 

fails to do so, but still has an avenue open to him by which he may present the claims, his 

petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 

U.S. 4, 6 (1982) (per curiam; Picard v. Connor, 404 U.S. 270, 275–76 (1971). If, because of a 

procedural default, the petitioner can no longer present his claims to a state court, he has also 

waived them for purposes of federal habeas review unless he can demonstrate cause for the 

procedural default and actual prejudice resulting from the alleged constitutional error. Murray v. 

Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S. 107, 129 (1982); Wainwright v. 

Sykes, 433 U.S. 72, 87 (1977).

In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a 

federal habeas claim is precluded by the petitioner's failure to observe a state procedural rule. 

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). “First, the court must determine that there is 

a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to 

comply with the rule.” Id. Second, the court must determine whether the state courts actually 

enforced the state procedural sanction. Id. Third, it must be decided whether the state procedural 

forfeiture is an adequate and independent state ground on which the state can rely to foreclose 

review of a federal constitutional claim. Id. Finally, if the court has determined that a state 

procedural rule was not complied with and that the rule was an adequate and independent state 

ground, then the petitioner is required to demonstrate that there was cause for him not to follow 

Case: 2:12-cv-00512-JLG-MRA Doc #: 8 Filed: 10/30/13 Page: 6 of 15 PAGEID #: <pageID>
7

the procedural rule and that he was actually prejudiced by the alleged constitutional error. Id.

This “cause and prejudice” analysis also applies to failure to raise or preserve issues for review at 

the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir.1985). 

Claims one, three and four. Petitioner failed to present claims one, three and four to the 

Ohio Supreme Court. The sole proposition of law Petitioner raised in his appeal to the Ohio 

Supreme Court was that involving the alleged denial of his right to confront witnesses against 

him. See Exhibit 16 to Return of Writ. Further, he may now no longer do so, under Ohio’s 

doctrine of res judicata. See State v. Cole, 2 Ohio St.3d 112 (1982); State v. Ishmail, 67 Ohio 

St.2d 16 (1981); State v. Perry, 10 Ohio St.2d 175 (1967). 

Ohio's res judicata rule is adequate and independent under the third part of the Maupin

test. To be “independent,” the procedural rule at issue, as well as the state court's reliance 

thereon, must rely in no part on federal law. See Coleman v. Thompson, 501 U.S. 722, 732–33, 

(1991). To be “adequate,” the state procedural rule must be firmly established and regularly 

followed by the state courts. Ford v. Georgia, 498 U.S. 411 (1991). “[O]nly a ‘firmly established 

and regularly followed state practice’ may be interposed by a State to prevent subsequent review 

by this Court of a federal constitutional claim.” Id. at 423 (quoting James v. Kentucky, 466 U.S. 

341, 348–351 (1984)); see also Barr v. City of Columbia, 378 U.S. 146, 149 (1964); NAACP v. 

Alabama ex rel. Flowers, 377 U.S. 288, 297 (1964); see also Jamison v. Collins, 100 F.Supp.2d 

521, 561 (S.D. Ohio 1998). 

The Sixth Circuit has consistently held that Ohio's doctrine of res judicata, i.e., the Perry 

rule, is an adequate ground for denying federal habeas relief. Lundgren v. Mitchell, 440 F.3d 

754, 765 (6th Cir. 2006); Coleman v. Mitchell, 268 F.3d 417, 427–29 (6th Cir. 2001); Seymour v. 

Walker, 224 F.3d 542, 555 (6th Cir. 2000); Byrd v. Collins, 209 F.3d 486, 521–22 (6th Cir. 

Case: 2:12-cv-00512-JLG-MRA Doc #: 8 Filed: 10/30/13 Page: 7 of 15 PAGEID #: <pageID>
8

2000); Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998). Ohio courts have consistently 

refused, in reliance on the doctrine of res judicata, to review the merits of claims because they 

are procedurally barred. See State v. Cole, 2 Ohio St.3d at 112; State v. Ishmail, 67 Ohio St.2d at 

16. Additionally, the doctrine of res judicata serves the state's interest in finality and in ensuring 

that claims are adjudicated at the earliest possible opportunity. With respect to the independence 

prong, the Court concludes that res judicata does not rely on or otherwise implicate federal law. 

Accordingly, this Court is satisfied from its own review of relevant case law that the Perry rule is 

an adequate and independent ground for denying relief. 

Claim two. In claim two, Petitioner asserts he was denied the right to confront witnesses 

against him because the trial court prohibited him from cross-examining Penny Wilson and 

Brittani Riley. The state appellate court explicitly reviewed this claim for plain error only, 

however, due to Petitioner’s failure to object at trial: 

On the second morning of trial, a bench conference was held where 

the court stated that it had a copy of a police report filed the 

evening before alleging that Bridget Ellenbaugh (appellant's 

girlfriend's daughter) received threatening comments from her aunt 

(Penny Wilson) and her cousin (Brittani Riley), two witnesses who 

would be testifying for the state. (Tr. 204). The report was retained 

as a court exhibit for purposes of appeal. According to the exhibit, 

appellant called the police to report that Bridget told him that 

Penny and Brittani were threatening her about her testimony to be 

presented the next day. The police obtained a statement from 

Bridget, who reported that her aunt and cousin asked her if 

appellant was threatening her and asked her to sign a paper stating 

the appellant was threatening her. At one point, while Penny was 

in the car, Brittani told Bridget that her kids could be taken away 

from her if she did not recant her statement, at which point Penny 

instructed Brittani to get in the car. Brittani then asked Bridget if 

she could call her later. 

The state asked that the trial court prohibit the defense from raising 

these allegations during the witnesses' testimony, stating that the 

claim had not yet been investigated and the witnesses could end up 

pleading the Fifth Amendment. (Tr. 205). The defense argued that 

Case: 2:12-cv-00512-JLG-MRA Doc #: 8 Filed: 10/30/13 Page: 8 of 15 PAGEID #: <pageID>
9

the allegations were relevant to the veracity of Penny and Britanni. 

(Tr. 205–206). 

The court ruled that the probative value of the allegations was 

outweighed by the prejudicial effect since no investigation had yet 

taken place, noting that a trial could be interrupted merely by a 

defendant filing a report during trial. (Tr. 207). The court later 

examined Bridget to ensure that she had not been threatened into 

testifying and that she would testify truthfully. (Tr. 207, 386). 

Bridget then testified that her cousin, Brittani, did not sleep over 

on the night of the burglary. (Tr. 392). 

Brittani Riley, however, testified that, because she had to work 

until 6:00 a.m. that Saturday morning and had to return to work at 

2:00 p.m., she slept over at the house where appellant lived 

because it was closer to work than her own home. (Tr. 254). She 

arrived at 6:30 a.m. and about twenty minutes later, she saw a 

vehicle pull in with appellant in the driver's seat and Shawn 

Ellenbaugh in the passenger seat. (Tr. 256). She noticed that the 

trunk was open and that they could not shut it. (Tr. 256–257). 

Brittani then testified that later that evening, she asked Shawn why 

they came in so late. He told her that appellant would kill him if he 

told anyone but eventually started crying and told her about the 

burglary. (Tr. 263). . . . She told her mother, Penny Wilson, in 

hopes that her mother could help because she was formerly a 

police officer. Her mother testified that when she spoke with 

Shawn, he was crying and shaking. She asked him to do the right 

thing, and he agreed to confess to the police. (Tr. 285). 

Appellant argues that by refusing to allow questioning of these two 

witnesses about the allegation that they tried to intimidate Bridget 

Ellenbaugh into changing her testimony,FN1 he was denied the 

right to meaningful cross-examination. He urges that if the jury 

heard about the police report, it would not only have damaged the 

credibility of these two witnesses but it also would have reinforced 

that they were biased against him. 

FN1. Appellant does not argue that Bridget's testimony was 

actually influenced; rather, the argument is focused on the 

character of Penny and Brittani. 

Initially, we note that an appellate court need not determine the 

propriety of an order granting or denying a motion in limine, which 

is merely a preliminary ruling, unless the claimed error is 

preserved by an objection, proffer, or ruling on the record at the 

Case: 2:12-cv-00512-JLG-MRA Doc #: 8 Filed: 10/30/13 Page: 9 of 15 PAGEID #: <pageID>
10

proper point during the trial. State v. Maurer (1984), 15 Ohio St.3d 

239, 259–260 (the failure to preserve a preliminary ruling 

constitutes waiver). Although the matter was discussed and ruled 

upon on the record mid-trial, this was specifically presented as and 

labeled in limine ruling on the state's request to exclude evidence. 

(Tr. 207). After the in limine bench conference, Shawn testified 

about the details of the burglary he helped commit. Then, Brittani 

and Penny testified. Nowhere during the testimony of Penny or 

Britanni was the in limine ruling sought to be changed into a final 

ruling. 

One of rationales behind the rule is that the court should make its 

final ruling in context. State v. Hancock, 108 Ohio St.3d 57, 2006–

Ohio–160, ¶ 59 (objecting party must challenge evidence during 

trial when issue is presented in full context); State v. Grubb (1986), 

28 Ohio St.3d 199, 201–202 (it is the potential treatment of an 

issue to be later resolved when it arises in the context of the trial 

where the trial court may change its mind based upon 

circumstances that are developed). Here, this would refer to the 

direct testimony of these witnesses being presented in order to 

determine the whole context of the contested items said to have 

bearing on their credibility. See State v. Menton, 7th Dist. No. 

07MA70, 2009–Ohio–4604, ¶ 58 (raised before nurse's testimony 

but not during). 

In any event, the court's ruling was not erroneous. Appellant does 

not cite Evidentiary Rules here. However, he argues the evidence 

could have shown bias and could have exposed that the witnesses 

were not credible. Evid.R. 403, 608 and 616 appear most relevant. 

Evid.R. 608(B) provides that specific instances of the conduct of a 

witness, for the purposes of attacking the witness' character for 

truthfulness may in the discretion of the court, if clearly probative 

of untruthfulness, be inquired into on cross-examination of the 

witness concerning the witness's character for untruthfulness. 

Pursuant to Evid.R. 616(A), “Bias, prejudice, interest, or any 

motive to misrepresent may be shown to impeach the witness 

either by examination of the witness or by extrinsic evidence.” 

Appellant states that the allegations would have helped establish 

his belief that the family was biased against him because they 

wanted him out of Pam Wilson's life. However, he did not ask 

either Penny or Bridget about this theory of his. Defense counsel 

did begin asking Penny whether she disliked appellant but then 

discontinued this line of questioning without attempting to elicit 

Case: 2:12-cv-00512-JLG-MRA Doc #: 8 Filed: 10/30/13 Page: 10 of 15 PAGEID #: <pageID>
11

evidence on his theory. (Tr. 288). He could have questioned them 

on this topic but did not. 

We also note that appellant's brief does not provide specifics or 

explain how exactly credibility or bias would be established. The 

only reason we know about the contents of the report was from 

ordering the exhibit from the trial court, not from the contents of 

appellant's brief, which only mentioned a general allegation of 

threatening by Penny and Brittani. 

Notably, nothing in the report influences Penny's character for 

truthfulness. In fact, it states that Penny was concerned that Bridget 

was being untruthful and expressed worry that appellant was 

coercing her niece's testimony. And, Penny was in the car when 

Brittani allegedly made the unfortunate statement about the 

possibility that Bridget's children could be taken away. 

Although appellant views the statement allegedly made by Bridget 

as threatening, it could be construed as a concerned cousin 

expressing what could happen for perjuring oneself in order to 

remain under a roof with a burglar who is dating your mother even 

though they are said to be first cousins. This does not establish a 

specific instance of untruthfulness or significantly affect her 

credibility. Rather, it is a family member taking one person's side 

over another's and an admonition to tell the truth. 

Evidence Rule 403(A) requires the court to exclude the evidence 

“if its probative value is substantially outweighed by the danger of 

unfair prejudice, of confusion of the issues, or of misleading the 

jury.” A criminal defendant's right to confront and cross-examine a 

witness is not unlimited, and the trial court retains wide latitude 

under the Confrontation Clause to impose reasonable limits on 

cross-examination due to concerns regarding issues such as 

harassment, prejudice, and confusion of issues. Delaware v. Van 

Arsdall (1986), 475 U.S. 673, 679; State v. Green (1993), 66 Ohio 

St.3d 141, 147. The limitation of cross-examination lies within the 

sound discretion of the trial court, viewed in relation to the 

particular facts of the case. State v. Acre (1983), 6 Ohio St.3d 140, 

145 (such a decision will not be disturbed in the absence of a clear 

showing of an abuse of discretion). 

As the state urges, the trial court placed a reasonable limit on 

cross-examination. The state points out that the allegations of 

intimidation were in a police report that had not yet been 

investigated and they are appellant's interpretation of an event 

occurring between a defense witness who lived with appellant and 

Case: 2:12-cv-00512-JLG-MRA Doc #: 8 Filed: 10/30/13 Page: 11 of 15 PAGEID #: <pageID>
12

her concerned aunt and cousin. As the trial court noted, a 

defendant could file a report mid-trial to generate new, 

uninvestigated evidence to use to impeach a witness. Considering 

the particular concerns in this case and incorporating the review 

conducted supra, we conclude that the trial court did not clearly 

abuse its discretion in granting the state's motion to exclude this 

evidence from trial, especially where Bridget did not change her 

statement and maintained her stance in favor of appellant's 

defense. For all of these reasons, this assignment of error is 

overruled. 

State v. Wright, 2011 WL 5346084, at *5-7. 

The United States Court of Appeals for the Sixth Circuit has held that plain error review 

does not constitute a waiver of the state's procedural default rules. Seymour v. Walker, 224 F.3d 

542, 557 (6th Cir. 2000). As explained by the United States District Court for the Northern 

District of Ohio in Adams v. Bradshaw, 484 F.Supp.2d 753, 771 (N.D. Ohio 2007): 

Ohio has a contemporaneous objection rule under which an 

appellant who fails to object waives later review of the issue unless 

plain error can be shown. Williams v. Bagley, 380 F.3d 932, 968 

(6th Cir.2004), cert. denied, 544 U.S. 1003, 125 S.Ct. 1939, 161 

L.Ed.2d 779 (2005) (citing State v. Smith, 89 Ohio St.3d 323, 332, 

731 N.E.2d 645 (2000)). The Sixth Circuit has held that Ohio's 

contemporaneous objection rule constitutes an adequate and 

independent state ground barring federal review absent a showing 

of cause for the waiver and resulting prejudice. Id.; Hinkle v.

Randle, 271 F.3d 239, 244 (6th Cir. 2001); Stojetz v. Ishee, 2006 

WL 328155 *12 (S.D. Ohio Feb.10, 2006). 

A state court's review of an issue for plain error is considered by 

the Sixth Circuit as the enforcement of a procedural default. 

Williams, 380 F.3d at 968; Hinkle, 271 F.3d at 244. The federal 

court, in determining whether a state court has relied on a 

procedural rule to bar review of an issue, examines the latest 

reasoned opinion of the state courts and presumes that later courts 

enforced the bar instead of rejecting the claim on the merits. 

Hinkle, 271 F.3d at 244 (citing Ylst, v. Nunnemaker, 501 U.S. 797, 

803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991)). 

Case: 2:12-cv-00512-JLG-MRA Doc #: 8 Filed: 10/30/13 Page: 12 of 15 PAGEID #: <pageID>
13

Id. This Court likewise concludes that petitioner has waived the right to present claim two in 

these habeas corpus proceedings. 

Although the state appellate court alternatively dismissed petitioner's claim on the merits, 

such alternative ruling does not forgive the waiver or otherwise revive the claim for purposes of 

habeas corpus review. Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) (“a state court need not 

fear reaching the merits of a federal claim in an alternative holding”); Bowling v. Parker, 344 

F.3d 487, 498 (6th Cir. 2003) (where state court's dismissal of claim on merits constitutes an 

alternative holding, federal habeas court will consider the claim procedurally defaulted); Kenney 

v. Haviland, No. 1:04 CV 2194, 2006 WL 2792171, at *6 n. 8 (N.D. Ohio Sep.26, 2006) (“The 

mere existence of the clear statement rule confirms that an alternative holding on the merits 

cannot save a claim where the court clearly and expressly enforces a state procedural bar”). 

Accordingly, the Magistrate Judge concludes that Petitioner has waived all of the grounds 

he now presents for federal habeas corpus relief. 

Petitioner may still obtain review of his claims on the merits, if he can establish cause for 

his procedural defaults, as well as prejudice from the alleged constitutional violations. 

 “ ‘[C]ause’ under the cause and prejudice test must be something 

external to the petitioner, something that cannot fairly be attributed 

to him[;] ... some objective factor external to the defense [that] 

impeded ... efforts to comply with the State's procedural rule.” 

Coleman v. Thompson, 501 U.S. 722, 753 (1991). 

Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003). Petitioner's pro se status or “ignorance of 

the law and procedural requirements for filing a[n] ... appeal is insufficient to establish cause to 

excuse his procedural default.” See Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir. 2004)(citation 

omitted). 

Case: 2:12-cv-00512-JLG-MRA Doc #: 8 Filed: 10/30/13 Page: 13 of 15 PAGEID #: <pageID>
14

Beyond the four-part Maupin analysis, this court is required to consider whether this is 

“an extraordinary case, where a constitutional violation has probably resulted in the conviction of 

one who is actually innocent.” Murray v. Carrier, 477 U.S. at 491; see also Sawyer v. Whitley, 

505 U.S. 333 (1992). 

The United States Supreme Court has held that if a habeas 

petitioner “presents evidence of innocence so strong that a court 

cannot have confidence in the outcome of the trial unless the court 

is also satisfied that the trial was free of nonharmless constitutional 

error, the petitioner should be allowed to pass through the gateway 

and argue the merits of his underlying claims.” Schlup, 513 U.S. at 

316, 115 S.Ct. 851. Thus, the threshold inquiry is whether “new 

facts raise[ ] sufficient doubt about [the petitioner's] guilt to 

undermine confidence in the result of the trial.” Id. at 317, 115 

S.Ct. 851. To establish actual innocence, “a petitioner must show 

that it is more likely than not that no reasonable juror would have 

found petitioner guilty beyond a reasonable doubt.” Id. at 327, 115 

S.Ct. 851. The Court has noted that “actual innocence means 

factual innocence, not mere legal insufficiency.” Bousley v. United 

States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 

(1998). “To be credible, such a claim requires petitioner to support 

his allegations of constitutional error with new reliable evidence—

whether it be exculpatory scientific evidence, trustworthy 

eyewitness accounts, or critical physical evidence—that was not 

presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851. The 

Court counseled however, that the actual innocence exception 

should “remain rare” and “only be applied in the ‘extraordinary 

case.’ ” Id. at 321, 115 S.Ct. 851. 

Souter v. Jones, 395 F.3d 577, 590-91 (6th Cir. 2005)(footnote omitted). Petitioner has failed to 

meet this standard here. 

WHEREUPON, the Magistrate Judge RECOMMENDS that this action be 

DISMISSED. 

Procedure on Objections: 

If any party objects to this Report and Recommendation, that party may, within fourteen 

(14) days of the date of this report, file and serve on all parties written objections to those 

Case: 2:12-cv-00512-JLG-MRA Doc #: 8 Filed: 10/30/13 Page: 14 of 15 PAGEID #: <pageID>
15

specific proposed findings or recommendations to which objection is made, together with 

supporting authority for the objection(s). A judge of this Court shall make a de novo 

determination of those portions of the report or specified proposed findings or recommendations 

to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or 

modify, in whole or in part, the findings or recommendations made herein, may receive further 

evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 

636(b)(1). 

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the district judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

The parties are further advised that, if they intend to file an appeal of any adverse 

decision, they may submit arguments in any objections filed, regarding whether a certificate of 

appealability should issue. 

 s/Mark R. Abel 

 United States Magistrate Judge 

 

Case: 2:12-cv-00512-JLG-MRA Doc #: 8 Filed: 10/30/13 Page: 15 of 15 PAGEID #: <pageID>